The Establishment Clause: Vouchers and School Choice
The Establishment Clause of the United States Constitution sets boundaries for the exercise of religion and the government’s infringement upon the practice of it. While the Constitution remains vague regarding the specifics of these boundaries, the First Amendment makes it clear that the government should limit its intrusion upon how people choose to live out their beliefs when it states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (U.S. Const. amend. I).
While it is apparent that the government cannot establish a religion, it is unclear what the verb “establish” actually means within the context of the Constitution. For that reason, several court cases have been tried that seek to clarify the ramifications of the First Amendment in various situations.
One of these situations that has come up for debate in the last couple of decades is the issue of school choice. School choice “refer[s] to programs and policies that let families use public money to access schools beyond their local option, including private schools” (Durrani, 2025). Opponents of school choice, otherwise referred to as a school voucher system, often focus on the proposed lack of accountability. Hugh Shine, a former Texas Representative, once made the statement, “The last thing we need to do is to dismantle a public education system by taking funding away without any real clear accountability in that process” (Greene, 2025). However, accountability is not the only issue faced by supporters of school choice. The most problematic question plaguing vouchers leads back to the Establishment Clause. Is sending tax-supporting funding to religious institutions against the First Amendment separation of church and the state?
Investigating the First Amendment in light of crucial court decisions can aid educators on both sides of the issue in determining the constitutionality of funding religious institutions with public monies. This analysis revisits the Supreme Court cases of Zelman v. Simmons-Harris (2002) and other historic court decisions, focusing on the interpretation of the Establishment Clause as it relates to vouchers and school choice. The implications for educational leaders will also be examined through the lens of the National Educational Leadership Preparation (NELP) Program Recognition Standards created by the National Policy Board for Educational Administration (NPBEA). These standards outline responsibilities and best practices for building-level and district-level administrators; they include, but are not limited to, educational leaders’ duty to support the “success of every student” and their obligation to ensure “equitable access to educational resources and opportunities” (NPBEA, 2018).
Relevant Statutory and Case Law
Zelman v. Simmons-Harris (2002)
There are several remarkable court cases that make up our current understanding of law and how that law affects public education. When the law pertains to the legality of school vouchers in religious schools, one of the most impactful cases is the Supreme Court Case of Zelman v. Simmons-Harris (2002). In this case, the “U.S. Supreme Court on June 27, 2002, ruled (5–4) that an Ohio school-voucher program did not violate the establishment clause of the First Amendment” (Welner, 2024). Taxpayers in Ohio were opposed to Ohio’s Pilot Scholarship Program that was created in order to give “educational choices to families in any Ohio school district that is under state control” (Zelman v. Simmons-Harris, 2002). Parents could choose to receive funds for “tutorial aid” for the students if they remained in public school, or they could receive “tuition aid” for their students if they chose to enroll their children in private institutions (Zelman v. Simmons-Harris, 2002).
The program was initiated in response to a failing public school system in Cleveland, Ohio; the “Cleveland City School District was placed under state control by a federal district court, which had declared a ‘crisis of magnitude’” (Welner, 2024). The Pilot Program was established as a result of the underperformance of those schools and was intended to help qualifying students in that district (Zelman v. Simmons-Harris, 2002).
However, 96% of the students who received funds from the program ended up attending some sort of religious institution. This led Ohio taxpayers to file suit on the basis that the program was in violation of the First Amendment and the Establishment Clause (Zelman v. Simmons-Harris, 2002). A federal district court reached the conclusion that the Pilot Program did violate the First Amendment, and the decision was affirmed by the Sixth Circuit Court of Appeals (Welner, 2024).
The case went to the Supreme Court, and the decision of Sixth Circuit Court of Appeals was reversed. It was determined that the program was not in violation of the First Amendment for the following reasons:
A government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice. (Zelman v. Simmons-Harris, 2002)
The court also emphasized the fact that “the parents in Cleveland had a variety of nonreligious choices, including options among public schools” (Welman, 2024). For these reasons, it was determined that vouchers in the context of the case of Zelman v. Simmons-Harris (2002) were not in violation of the First Amendment.
Aguilar v. Felton (1985)
However, in 1985, the Supreme Court found the city of New York to be in violation of the Establishment Clause when they tried to use “federal funds received under the Title I program of the Elementary and Secondary Education Act of 1965 to pay the salaries of public school employees who teach in parochial schools in the city” (Aguilar v. Felton, 1985). Essentially, the program sought to aid disadvantaged students by sending taxpayer-funded public school teachers into the religious schools in order to provide enriched and remedial instruction. The Court of Appeals reversed the decision of the District Courts and declared that the use of taxpayer funds in this instance was unconstitutional and would “inevitably result in the excessive entanglement of church and state” (Aguilar v. Felton, 1985). The Supreme Court upheld that decision until 1997 when it heard the case of Agostini v. Felton (1997).
Agostini v. Felton (1997)
In that year, the decision of Aguilar v. Felton (1985) was overruled by the decision in the case of Agostini v. Felton (1997). The Court held that “a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause” (Agostini v. Felton, 1997). If the instruction provided by the public school teachers was both neutral in respect to religion and secular in purpose, the Court determined that there was not an excessive entanglement between the government and religion, and there was no conflict with the First Amendment (Agostini v. Felton, 1997).
The Court resolved that “placing full-time government employees on parochial school campuses does not as a matter of law have the impermissible effect of advancing religion through indoctrination” (Agostini v. Felton, 1997). This case is pivotal in the interpretation of the law as it relates to school choice and school vouchers because in this case, the Court altered its “understanding of the criteria used to assess whether aid to religion has an impermissible effect” (Agostini v. Felton, 1997). This decision “written by Justice Sandra Day O’Connor, began a shift in the Court’s interpretation of the constitutionally mandated separation of church and state” (Preston, 2024).
Carson v. Makin (2022)
In 2022, parents in Maine filed suit against the state because they claimed that the “‘nonsectarian’ requirement of Maine's tuition assistance program for private secondary schools violated the Free Exercise Clause and the Establishment Clause of the First Amendment” (Carson v. Makin). In the state of Maine, “parents who live in school districts that neither operate a secondary school nor contract with a school in another district” are offered tuition assistance; however, the schools eligible to receive the funds were limited to nonreligious institutions (Carson v. Makin, 2022). The First Circuit Court of Appeals upheld the right of the state to limit the distribution of the tuition aid to secular schools, but the Supreme Court reversed that decision; the Court declared that “A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause” (Carson v. Makin, 2022).
St. Isidore of Seville Catholic Virtual School v. Drummond (2025)
In a recent case, the Oklahoma Supreme Court ruled on the Oklahoma charter school board’s decision to allow St. Isidore of Seville Catholic Virtual School to become a charter school in their state. The Court’s decision asserted that “funding the school violated the First Amendment’s establishment clause, the Oklahoma Constitution and a state law governing charter schools” (Weiss, 2025). The state reasoned that the establishment clause restricted the state and prevented them from using taxpayer money to fund a religious institution; St. Isidore countered by claiming that “the state Supreme Court’s ruling ‘unconstitutionally punished the free exercise of religion by disqualifying the religious from government aid’” (Howe, 2025).
This case will be tried in April of 2025, and both sides of the issue are anticipating the change the ruling could bring. While the governor of Oklahoma believes that a ruling in favor of the school would foster an expansion of religious freedoms and liberties, Oklahoma’s attorney general believes that “a judgment in favor of St. Isidore would threaten religious liberty by allowing closer ties between the government and religious organizations” (Russo, 2025).
The Court will seek to answer two key questions. Would a taxpayer-funded Catholic charter school create a scenario where the government is promoting or establishing religion? And, would the state refusing to fund the Catholic charter school because it is considered religious in nature be considered a violation of the “free exercise” portion of the First Amendment?
This case will be heard at a pivotal moment in time as many states are looking to vouchers as a way to aid struggling educational systems. As of 2024, a number of states were allowing taxpayer funds to go to private and religious schools, and 11 states had universal voucher laws (Walker, 2024). Arizona is one of those states, and their voucher program “projected to cost $950 million [this] year, $320 million of which is unbudgeted” (Walker, 2024). With so much money tied up in these programs, it is imperative that educational leaders understand the legal implications of integrating public money and private beliefs. Students, parents, educators, and taxpayers should all be represented and supported by existing systems and programs currently being considered. As Texas and other states attempt to implement school choice programs, there is one thing for sure: “St. Isidore is a potential game changer, because it may expand the limits of aid to faith-based schools and their students more than ever before” (Russo, 2025).
Application of Legal Principles and NELP Standards
NELP Standard 2.1
As an educational leader in a public school in Texas, I would “understand and demonstrate the capacity to reflect on, communicate about, and cultivate professional dispositions and norms” by advocating for “equity, fairness, integrity, transparency, trust, [and] collaboration” (NPBEA, 2018). While the Supreme Court upheld the practice of distributing taxpayer funds to religious schools in Zelman v. Simmons-Harris (2002), Agostini v. Felton (1997), and Carson v. Makin (2022), this does not automatically mean that vouchers provide an equal education for all. In my capacity as a leader in my community, I would communicate clearly the legality of vouchers as well as the necessary changes needed in the current school choice legislation. Vouchers may legally be used to help pay for students’ education in secular and sectarian schools, so currently the argument that school choice violates the Establishment Clause is not valid.
However, I would promote fairness and equity in the distribution of these funds. In order to further transparency in education law, I would make sure that my school and community understood the current voucher proposals in the Texas House of Representatives and the potential harm to public school budgets and programs. As of right now, public schools would receive $6,380 per student under the new legislation while voucher participants could receive up to $10,893 annually (Edison et al., 2025).
NELP Standard 2.2
Also as an educational leader in Texas, I would “understand and demonstrate the capacity to evaluate and advocate for ethical and legal decisions” (NPBEA, 2018). Even though I would love to argue that vouchers in Texas would violate the Establishment Clause, it is evident that school choice is not inherently unconstitutional. When Zelman v. Simmons-Harris (2002) is considered, giving parents and students a choice of schools (including religious ones) is not in conflict with the First Amendment. Therefore, I would seek out alternative solutions for any setbacks caused by a lack of future funding due to the proposed voucher system. What can we do in order to create a more equal system? How can public schools retain more taxpayer monies if the current legislation on school choice is approved? What are the ethical and legal courses of action public schools can take? I would seek to evaluate possible avenues that we could pursue as a public institution.
NELP Standard 2.3
In addition, as an educational leader, I would seek to “understand and demonstrate the capacity to model ethical behavior in [my] personal conduct and relationships and to cultivate ethical behavior in others” (NPBEA, 2018). I believe that, as educators, we should be above reproach. Everything we do should be ethical, and we should promote ethical behavior in the people that surround us. In light of the court cases discussed above, it would not be ethical, moral, or right for me to decry vouchers as illegal on the basis of the First Amendment. Carson v. Makin (2022) actually declared it illegal to not allow nonsectarian institutions the benefit of vouchers in a state where vouchers exist. This is the easiest argument against the state funding of private institutions, but it is not the ethical defense. I would model ethical behavior and look for constitutionally-based arguments for giving more support to public schools in this era of school choice.
NELP Standard 6.3
In my current capacity, I am not in charge of hiring, firing, or placing personnel; however, if I were to be given that authority, I would “understand and demonstrate the capacity to develop, implement, and evaluate coordinated, data-informed systems for hiring, retaining, supervising” (NPBEA, 2018). One difficulty of school choice and the distribution of taxpayer money is the potential decrease in funding for public schools. Any new hires in a public school will need to fill multiple roles and support the school system in a variety of ways.
As mentioned in Carson v. Makin (2022), private schools, both religious and secular, do not have to accept all students. Thus, in a state that favors vouchers, they may carefully chose the students they select and receive tuition assistance for those individuals. Since some students require more personnel to meet their needs, private schools could potentially avoid the necessity of hiring additional personnel by simply not choosing the students that need extra support. Public schools, however, are required to admit all students; therefore, their personnel costs may be higher.
Conclusion
The Establishment Clause of the United States Constitution makes it obvious that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (U.S. Const. amend. I). A state cannot favor one religion over another, and it cannot favor the absence of religion over religion. “The very point of the Establishment Clause is to prevent the government from sponsoring religious activity itself, thereby favoring one religion over another or favoring religion over nonreligion” (Carson v. Makin, 2022).
Equal opportunity for both secular and religious schools is protected by the First Amendment, and that protection extends to the proposal of school choice and vouchers. In Zelman v. Simmons-Harris (2002), the Supreme Court emphasized that government aid to private, religious schools was constitutional since the schools were selected “wholly as a result of their own genuine and independent private choice.”
The question of school choice continues to be examined even today. In the case of St. Isidore of Seville Catholic Virtual School v. Drummond (2025), the Supreme Court will rule on the constitutionality of the first religious charter school. They will decided whether or not “funding the school violates the establishment clause and whether excluding the school from the program violates the free exercise clause” (Weiss, 2025). However, regardless of what is decided in this upcoming case, the struggle to fund public schools while distributing taxpayer money to charter and private schools will remain.
As an educational leader, I would need to balance the state’s right to issue vouchers to parents of students in private institutions with the necessity of helping my school and district maintain funding. Even though several Supreme Court cases support school choice, I would hold myself accountable for the “academic success and personal well-being of every student” on my campus (NPBEA, 2018) and search for creative solutions to potential budgetary struggles.
References
Agostini v. Felton, 521 U.S. 203 (1997)
Aguilar v. Felton, 473 U.S. 402 (1985)
Carson v. Makin, 596 U.S. 767 (2022)
Durrani, Anayat. “What School Choice Is and How It Works.” US News & World Report, U.S. News & World Report, 14 Apr. 2023, www.usnews.com/education/k12/articles/what-school-choice-is-and-how-it-works.
Edison, Jaden, et al. “Texas House Unveils Its Private School Voucher Bill.” The Texas Tribune, 20 Feb. 2025, www.texastribune.org/2025/02/20/texas-house-school-vouchers/.
Greene, Peter. “Texas and the Conservative Pushback on School Vouchers.” Forbes, 18 Feb. 2025, www.forbes.com/sites/petergreene/2025/02/18/texas-and-the-conservative-pushback-on-school-vouchers/. Accessed 21 Feb. 2025.
Howe, Amy. “Supreme Court Will Weigh in on Effort to Found Nation’s First Religious Charter School - SCOTUSblog.” SCOTUSblog, 24 Jan. 2025, www.scotusblog.com/2025/01/supreme-court-will-weigh-in-on-effort-to-found-nations-first-religious-charter-school/.
National Policy Board for Educational Administration (NPBEA). “National Educational Leadership Preparation (NELP) Program Recognition Standards - Building Level.” Open Educational Resources Collection, 1 Jan. 2018, irl.umsl.edu/oer/18/. Accessed 10 June 2024.
Preston, C. (2024, November 27). Lemon v. Kurtzman. Encyclopedia Britannica. https://www.britannica.com/topic/Lemon-v-Kurtzman
Russo, Charles J. “Can a Charter School Be Religious? The Supreme Court Decision about St. Isidore, a Catholic School in Oklahoma, Could Redraw Lines around Church and State in Education.” Chron, Associated Press, 31 Jan. 2025, www.chron.com/news/article/can-a-charter-school-be-religious-the-supreme-20096114.php. Accessed 21 Feb. 2025.
U.S. Const. amend. I
Walker, Tim. ““No Accountability”: Vouchers Wreak Havoc on States | NEA.” Www.nea.org, 2 Feb. 2024, www.nea.org/nea-today/all-news-articles/no-accountability-vouchers-wreak-havoc-states.
Weiss, Debra Cassens. “Supreme Court Will Decide Whether Oklahoma Can Fund Catholic Charter School.” ABA Journal, 27 Jan. 2025, www.abajournal.com/news/article/supreme-court-to-decide-whether-oklahoma-can-fund-catholic-charter-school. Accessed 21 Feb. 2025.
Welner, K.G. (2024, June 20). Zelman v. Simmons-Harris. Encyclopedia Britannica. https://www.britannica.com/topic/Zelman-v-Simmons-Harris
Zelman v. Simmons-Harris, 536 U.S. 639 (2002)